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The decision points out the need for an explicit adaptation of the factors to be considered pursuant to State v. Guzy, 139 Wis. 2d 663, 667, 407 N.W.2d 548 (1987), when determining the lawfulness of a stop and detention that does not occur in the immediate wake of a crime.

Both parties in this case discussed the Guzy factors at great length in their briefs, but the court relegated its discussion to a footnote, albeit a lengthy one. The result of trying to fit a stop that occurred four days after the crime into the Guzy framework is unavoidably unsatisfactory.

In Guzy, the officers stopped a vehicle they sighted one-half hour after a reported robbery in which the robber was described as "a white male, five feet five inches-five feet eight inches, dark shoulder-length hair and a beard, a slim build, wearing sunglasses and a blue vest with red stripes"; no description of a vehicle was given, nor was there an indication that more than one person was involved. The officers stopped a truck with Minnesota license plates heading toward Minnesota because the robber could have been in that area by that time, and the male occupants had unusually long hair.

The Supreme Court held that these two factors, coupled with the fact that there were very few vehicles on the road at 2:30 a.m., justified the officers stopping the vehicle, especially because, in view of the circumstances, they had no other means of corroborating the physical description and might lose the opportunity to investigate once the vehicle crossed the border.

The court listed six factors that it said, are "helpful" and "must be considered in reaching the required determinations":

  1. "the particularity of the description of the offender or the vehicle in which he fled;

  2. the size of the area in which the offender might be found, as indicated by such facts as the elapsed time since the crime occurred;

  3. the number of persons about in that area;

  4. the known or probable direction of the offender’s flight;

  5. observed activity by the particular person stopped; and

  6. knowledge or suspicion that the person or vehicle stopped has been involved in other criminality of the type presently under investigation."

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Detention four days
after crime still lawful

Discussing Guzy in the case at bar, the court noted, "In this case, the third and fourth factors are not relevant because the officer was not stopping a suspect who was fleeing from a crime that had just been committed, and there is no evidence pertaining to the fifth and sixth factors. We therefore focus in our analysis on the first and second factors, and others we have identified as relevant in this case."

However, while the court acknowledged that the third and fourth factors are not relevant unless dealing with a fleeing suspect, in fact, the first and second both assume a fleeing suspect as well.

The first factor explicitly refers to the vehicle "in which he fled." The second factor, "the size of the area in which the offender might be found, as indicated by such facts as the elapsed time since the crime occurred," is utterly meaningless, because, after the lapse of four days, the suspect could literally be in any corner of the world.

Thus, while it may be an overstatement to say that Guzy is unworkable when applied outside the context of a fleeing suspect, it clearly needs substantial reworking if courts are going to continue to apply it in these sorts of cases.

– David Ziemer

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David Ziemer can be reached by email.

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